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Category: UK Employment Law

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Experience: 30 years experience

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letter from my Ex-Employers Solicitors,

Resolved Question:

Hi

I have just received a letter from my Ex-Employers Solicitors, stating that I have breached a Post Termination point of Approaching and offering a job to an employee of my ex company.

I was made Redundant after 4 years in the IT Sector, and Joined a Reseller to the said Company as MD, here I have talked to many ex-colleages and the above person wanted to pursue a new opportunity which he could not do at his existing employer.

They do however state that they will take no further steps if a sign a letter stating that I will abide by the Post Contractual terms, but also ask that "I will provide a list of all XXX employees I have contacted or attempted to solicit during and after my employment"

They are not saying that I have breached anything to do with Customers.

They also say that they can use my home and mobile records and my home computer for document retention in these legal proceedings???

Thank you for your question.I will be pleased ot help you with this but can you give me some more information? Can you explain where these restrictions came from? Were they in your contract or compromise agreement on your redundancy.? What is the exact wording of the restriction please?

Non-Solicitation of CustomersNon-Solicitation of employeesNon-interference with suppliers.

Here is the text..

You must not for a period of 12 months after the termination of your employment with the Company (howsoever caused) either on your own account or for any other person, firm, company or other organisation (and whether as an employee, director, principal, agent, consultant or in any other capacity whatsoever) directly or indirectly, induce, solicit, entice or endeavour to entice away from the Company any person who is at the date of such termination an employee of the Company of managerial, technical or sales grade, provided that such restrictions shall apply only to those employees of the Company with whom you shall have had material contact or dealings in performing your duties of employment at any time during the 12 months immediately preceding the termination of your employment.

Ok thanks. It does not soudn as if you have solicited anyone and I would reply that whilst you have taken advice and you do not believe the restrictions are enforceable you have not in any event breached the non solicitation provision. This clause does not prevent you form offering a job to someone who seeks it.

I t may be useful to explore further the validity of the restrictions. you say you were made redundant. Were you given proper contractual notice? Or were you paid off in lieu? If the latter was there a provision in your contract that allowed them to to do that? I there is any technical breach of contract by them then they cannot enforce the restrictions

Restriction are only enforceable anyway if proportionate. I assume you were relatively senior but even so a 12 month restriction is quite long. If the restrictions were in your job offer they may be enforceable but as I said they cannot stop you from employing people only from soliciting them.

I would respond that as a reseller you have contact with a large range of people but you have not solicited anyone as I originally suggested. It seems pretty hostile to have their solicitors send you letters if you are a major reseller.

You did not answer my original question about notice etc. The point is highly technical about pay in lieu of notice. However if signed a compromise agreement as part of the redundancy then it may have restated the post termination restrictions.

If you want to hire other people then put job adverts out on you website or something so they can apply to those to avoid problems

Theoretically the posts are open to internet search but once a question is closed it is unlikely anyone would access it but I recommend you do not use real names or identities - unless of course you want to name names!!

This is my problem that if my answer to their demands is construed as not the one they want, that this will have repercussions on my new job, if I comply then its like admitting that I have done what they say.. which I haven't!

They could then say to my new employer that keeping me means they terminate the partnership, not very business like.. but who knows.

The ex-company is a Global company, so I am assuming their solicitors know what they are doing or could do?

I would not assume that the solicitors know what they are doing or that they are entitled to ask for what they are demanding. Respond that you have never breached any covenants and they are neither entitled to ask for you not to contact anyone at the company nor is it a sensible or practical suggestion given the trading relationship.

I doubt if they will pursue it but make sure any one you hire responds to an advertisement or to a recruitment consultant

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